Laluwa Bhuiyan vs The State Of Bihar (Now Jharkhand)
2022 Latest Caselaw 3623 Jhar

                    Cr. Appeal (DB) No. 171 of 1994 ®
[Against the judgment and order of conviction and sentence dated 20.05.1994,
passed by Shri N.K. Prasad, learned Sessions Judge, Hazaribag in S.T. No. 403
of 1991.
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Laluwa Bhuiyan, S/o Panruwa Bhuiyan, R/o Village-Kuju, P.S. Mandu, District-

Hazaribag.                              .....Appellant
                         Versus
The State of Bihar (Now Jharkhand).         ....Respondent
                         --------
For the Appellant        : Mr. Birendra Kumar, Advocate
For the Respondent       : Mr. Bishwanath Roy, A.P.P.
                         PRESENT
      HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
          HON'BLE MR. JUSTICE AMBUJ NATH
                         --------
C.A.V. On 18.8.2022                           Pronounced on 12/09/2022

Heard Mr. Birendra Kumar, learned counsel for the appellant and Mr. Bishwanath Roy, learned A.P.P.

2. This appeal is directed against the judgment and order of conviction and sentence dated 20.05.1994, passed by Shri N.K. Prasad, learned Sessions Judge, Hazaribag in S.T. No. 403 of 1991, whereby and whereunder the appellant has been convicted for the offences under sections 366 and 376 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for ten years for each of the said sections. All the sentences were however directed to run concurrently.

3. A written report of Tulsi Kumar Rana reveals that on 12.2.1991 at about 8.30 P.M., his sister-Munni Kumari had gone outside the house to answer the call of nature but she did not return. He had searched for her in his relative's place but no trace could be found. Later on came, he came to know that Laluwa Bhuiyan, Charku Bhuiyan, the wife of Charku Bhuiyan namely Milapo Bhuini and Sohagi Bhuini had enticed away his sister and had taken her to the house of Bartiya Bhuiyan.

4. Based on the aforesaid allegations, Mandu (Kujju) P.S. Case No. 61 of 1991 was instituted for the offences punishable under sections 363/366A of IPC. On conclusion of investigation, chargesheet was submitted against Laluwa Bhuiyan for the offences under sections 363/366A, 376 and 323 IPC. After cognizance was taken, the case was committed to the Court of Sessions where it was registered as S.T. No. 403 of 1991. Charge was framed under sections Cr. Appeal (D.B.) No. 171 of 1994 (R)

366A, 363, 376 and 323 IPC, which was read over and explained to the accused in Hindi, to which he pleaded not guilty and claimed to be tried.

5. The prosecution has examined as many as nine witnesses in support of its case.

P.W-1-Dr. Neelam Choudhary was posted at Sadar Hospital, Hazaribag as Civil Assistant Surgeon and on 19.06.1991 she had examined Munni Kumari and had found the following:-

"Height 141 C.M., weight 72 Lbs. Number of teeth 14 x 14. Secondary sex character well developed. Axillary hair present. Pubic hair present. No external injury found anywhere.

As per examination, no external injury in and around the private part. Hymen absent, old tear present. Vagina admits two fingers easily. During examination vaginal smear taken and sent for microscopical examination for presence of spermatozoa. No any foreign hair of any body was present in the vagina. Spermatozoa found.

X'ray was done in Sadar Hospital, Hazaribag and plate no. is 102/695/91. X'ray report shows (1) Epiphysis of ulna-partially fused(2) Epiphysis of radius just fused. (3) Epiphysis of ileas creast appeared. (4)Greater-lessor-Trochenter fused.(5) Ischial Tubeosity not fused. A trausverse old scar mark about 2" present in front of left foot".

The age of the victim was assessed to be about 16 years. She has proved the medical report, which has been marked as Ext-1. In cross-examination, she has deposed that the age of the girl cannot be more than 18 years. On further cross-examination on recall, she has stated that the age of the victim cannot be between 17 and 19 years.

P.W-2-Govind Nath Rana has stated that the incident is of 12.02.1991 and it was the festival of Shivratri, for which he had gone to the temple. He had returned back at 9.30 P.M. when he came to know that his daughter-Munni Kumari had gone out to answer the call of nature but she did not return back. He went in search of his daughter but being frustrated he fell down unconscious and when he regained consciousness, Janki Rana had told him that on the night of the occurrence, he had seen Munni Kumari and Laluwa Bhuiyan sitting in the brick-klin. They made a search everywhere but she could not be found. He has stated that the age of his daughter is 15 years. He has further stated that his daughter had returned back on 18.06.1991.

Cr. Appeal (D.B.) No. 171 of 1994 (R)

In cross-examination, he has deposed that the house of Laluwa Bhuiyan is at a distance of 300-400 yards from the house of this witness. He does not have any knowledge as to whether his daughter and the accused had any love affairs or not. His daughter was born sometimes in the year 1975-76. He has seven children and Munni is the youngest.

P.W-3-Piteshwari Devi is the mother of the victim-Munni Kumari who has deposed that the incident is of two years back when it was Shivratri and in the evening her daughter had gone to the temple along with her sister in law-Kabutri Devi. After returning back home, she had gone outside to answer the call of nature but she did not return and in spite of search, she could not be traced out. Her daughter returned home after four months and disclosed that Laluwa Bhuiyan had committed rape upon her on the point of knife. She was taken to Muzzafarpur where she was kept for three months. Her daughter had come back with Laluwa Bhuiyan.

In cross-examination, she has deposed that she never knew Laluwa Bhuiyan from before. The house of Laluwa Bhuiyan is adjacent to her house. She has seven children and the interval of birth between each of them is about 1 and ½ years.

P.W-4-Tulsi Kumar Rana is the informant who has deposed that on 12.2.1991 at 8.30 P.M., his sister had gone to the toilet situated at the rear of the house but when she did not return back even after half an hour, a search was conducted and in course of search, one Janki Mistri had disclosed that in the light of the torch he had seen Munni Kumari and Laluwa Bhuiyan fleeing away. He went to the house of Laluwa Bhuiyan but he could not be found. He has stated that his sister was aged about 15 years at the time of the occurrence. When no trace could be found of his sister, he had submitted a written report to Kujju P.S. He has proved the written report, which has been marked as Ext-2.

In cross-examination, though he had initially denied to be knowing Laluwa Bhuiyan but subsequently has stated that Laluwa Bhuiyan is his co-villager. He had searched at various places for getting the whereabouts of his sister and after searching for 20-25 days, he had lodged the First Information Report.

P.W-5-Geeta Devi has deposed that the incident had occurred in the night of Shivratri when Munni Kumari had gone to answer the call of nature but she did not return and in course of search, Janki Rana had disclosed that Munni Kumari was enticed away by Laluwa Bhuiyan.

Cr. Appeal (D.B.) No. 171 of 1994 (R)

In cross-examination, she has stated that the marriage of Munni Kumari has already been solemnized. It is wrong to say that there was a love affair between Munni Kumari and Laluwa Bhuiyan.

P.W-6-Munnia Kumari is the victim who has stated that it was around 8 P.M. on the occasion of Shivratri when she had gone to answer the call of nature behind a brick-kiln. Laluwa Bhuiyan had come and by brandishing a knife had pressed her mouth. She was thereafter taken to a room and was kept the whole night and she was also subjected to rape on the point of knife by Laluwa Bhuiyan. In the morning, she was taken to another place, which was called Muzzafarpur. She was kept there for four months and everyday Laluwa Bhuiyan used to sexually exploit her. Thereafter she was brought to Kujju by Laluwa Bhuiyan from where she rushed home and disclosed the entire incident to her mother. The police had come and she was sent for medical examination.

In cross-examination, she has deposed that she does not know in which year she was born. Her marriage has been solemnized about one year three months back. She did not know Laluwa Bhuiyan from before. There was no other persons present in the places where Laluwa Bhuiyan had kept her. She has stated that on the second day, Laluwa Bhuiyan had fed her in a hotel in which the owner of the hotel, staffs and other customers were present. She had never disclosed that she was being forcibly taken away by Laluwa Bhuiyan because he was not allowing her to speak. The bus in which she was taken by Laluwa Bhuiyan was filled with passengers. She did not tell anyone because of the threat extended by Laluwa Bhuiyan. In the house where she stayed for four months, there were other occupants also but here also she was forced to remain silent because of the threats extended by Laluwa Bhuiyan. When Laluwa Bhuiyan went out to bring food, she was locked from outside. She never raised any cry of alarm when Laluwa Bhuiyan went out. She has further deposed that she stayed with Laluwa Bhuiyan for four months and only went out at night to answer the call of nature accompanied by Laluwa Bhuiyan. She has further stated that the people have seen both of them going out.

Her statement was recorded before the Magistrate and she has admitted to have given a statement that she stayed with the accused as his wife due to the threats given by him.

P.W-7-Keshav Murti Tiwari has deposed that on 21.6.1991, he was posted as a Judicial Magistrate, Hazaribag and on that day he had recorded the 164 Cr.P.C statement of Munni Kumari. He has proved his signature and the Cr. Appeal (D.B.) No. 171 of 1994 (R)

thumb impression of Munni Kumari on the said statement, which has been marked as Ext-3.

P.W-8-Janki Rana has not supported the case of the prosecution and was accordingly declared hostile by the prosecution.

P.W-9-R.K.E. Bara is the Investigating Officer who has proved the formal FIR, which has been marked as Ext-4. On the orders of the Officer in charge, he had taken over investigation of the case. He had recorded the restatement of the informant. He had sent Munni Kumari for getting her statement recorded under section 164 Cr.P.C. Her medical report was obtained. The statements of the witnesses were recorded and the place of occurrence was also inspected. He had arrested the accused. He has deposed that the witness-Janki Rana had stated before him that on 12.2.1991, he had seen two persons sitting in the brick- kiln and in the light of the torch, he had identified both of them as Laluwa Bhuiyan and Munni Kumari. On completion of investigation, chargesheet was submitted against Laluwa Bhuiyan.

In cross-examination, he has deposed that he had not gone to Muzaffarpur since the accused was found in Kujju itself. Munni Kumari had not given any statement before him that when she had gone out to answer the call of nature she was subjected to rape by Laluwa Bhuiyan on the point of knife.

6. The statement of the accused was recorded under section 313 Cr.P.C., in which he has denied his role in enticement and commission of rape upon the victim.

7. It has been submitted by Mr. Birendra Kumar, learned counsel for the appellant that the evidence of P.W-6, who is the victim, indicates that she was sixteen years of age at the time of the incident and capable of giving consent. Infact her evidence clearly points to a love affair existing between the appellant and the victim.

8. Mr. Bishwanath Roy, learned A.P.P., has submitted that the victim was sexually abused and as per her own statement, the appellant had continuously ravished her by extending threats.

9. We have considered the rival submissions and have also perused the Lower Court Records.

10. The learned trial court has come to a conclusion that the victim (P.W-6) was enticed away by the appellant and was subjected to rape by the appellant. So far as the evidence of P.W-6 is concerned, she has stated that it was 8 P.M. when she had gone to relieve herself when on the threat of a knife she was Cr. Appeal (D.B.) No. 171 of 1994 (R)

forcibly taken to a room where she was confined the whole night and rape was also committed upon her. In the next morning, she was taken to another place, where she was kept for four months. Her cross-examination reveals that she was fed in a hotel where customers and staffs were present, taken on a bus filled with passengers, was kept in a room for four months and went out at night to answer the call of nature but during the entire period, she had remained a mute spectator and neither raised any alarm nor tried to escape though she was presented several opportunities, which is antithesis to her allegation of enticement and commission of rape. Though P.W-8 Janki Rana has been declared hostile by the prosecution but the evidence of P.W-2, P.W-4 and P.W-9 accentuates this fact since it was disclosed that both were found sitting in the brick-kiln and were also seen fleeing away. P.W-9 has also stated that the victim had never given a statement before him that she was subjected to rape by the appellant on the point of knife when she had gone out to answer the call of nature. It can, therefore, be concluded that she had gone with the appellant on her own free will. The question therefore arises is whether the victim could have given her consent and for this purpose the determination of the age of the victim is essential. Admittedly, there is no school certificate to ascertain the age of the victim. The medical evidence is therefore the only guiding force through which the age can be determined. P.W-1, who is the medical officer, has assessed the age of the victim to be 16 years and it cannot be more than eighteen years. The findings recorded are on the basis of X-ray done, which is borne out from the medical report itself. The evidence of P.W-2, who is the father of the victim, to a certain extent matches the findings of the doctor. The prosecution has failed to prove that the victim was less than sixteen years of age at the time of the incident.

11. Section 375 ( as it stood before the Criminal Law (Amendment) Act, 2013) of the Indian Penal Code, 1860 reads as follows:-

"375. Rape.-A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:

Sixthly.-With or without her consent, when she is under sixteen years of age."

12. Therefore, on the date of the incident, P.W-6 was competent to give her consent and her evidence clearly reveals a consensual intercourse between her and the appellant. Such circumstances wipes out the case of the prosecution regarding enticement and commission of rape as alleged against the appellant.

Cr. Appeal (D.B.) No. 171 of 1994 (R)

13. In this context, reference is made to the case of State of Madhya Pradesh Vs. Munna @ Shambhoo Nath, reported in (2016) 1 SCC 696 and the relevant reads as follows:-

"12. In view of the evidence on record and the rationale in the aforementioned cases, we are of a considered view that the prosecution has totally failed to prove beyond reasonable doubt that the girl was less than 16 years of age at the time of the incident. Therefore, it can be held that the girl was more than 16 years of age and she was competent to give her consent as held by the High Court. Hence, in the present case, the question of rape does not arise as consensual intercourse has been proved.

14. Since the prosecution has miserably failed to prove its case beyond all reasonable doubt, the appeal must succeed.

15. Accordingly, we allow this appeal and set aside the judgement and order of conviction and sentence dated 20.05.1994, passed by Shri N.K. Prasad, learned Sessions Judge, Hazaribag in S.T. No. 403 of 1991, whereby and whereunder the appellant has been convicted for the offences under sections 366 and 376 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for ten years for each of the said sections.

16. Since the appellant is on bail, he is discharged from the liability of his bail bonds.

( Rongon Mukhopadhyay,J)

(Ambuj Nath, J)

Jharkhand High Court, Ranchi Dated_12th September, 2022 Rakesh/NAFR.